August 13, 2020
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Legislators Markout Their Terrain

Stung to the quick by the recent burst of judicial activism and the consequent damage to their public image, politicians are determined to restore the supremacy of the legislature

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Legislators Markout Their Terrain

IN a private gathering with Speaker Purno Sangma on October 12, a little before a symposium on judicial activism was to begin in the Parliament annexe, a group of MPs from various parties let flow a flood of venom against the judiciary. The courts, they fumed, had belittled and blackened the image of the politician—and they saw in this a direct assault on the credibility of Parliament. The situation, all seemed to agree, was drastic enough to warrant drastic measures, like a constitutional amendment.

At the symposium too, the speakers were no less vituperative. MP after MP lamented that Parliament had lost its sovereignty, that the judiciary was exhibiting a dangerous tendency to encroach on legislative and administrative functions beyond its ambit, that the judges were turning populist and playing to the gallery in the recent spate of widely-publicised corruption trials.

Sangma, who had taken the initiative to organise the symposium, was himself very outspoken and articulated the common concern that the elected representatives were being given a raw deal by the judiciary. "Personalities who have been in high places should not be denied the remedies available in judicial processes to similarly placed common people, simply for the reason that they have been in high places," he said. Sangma also cautioned against another tactic being increasingly employed by ‘public interest’ litigants: that of frequently approaching the apex court in a direct fashion, especially with special leave petitions (SLPs), when other available avenues have not been taken recourse to. "Courts of last resort should not end up becoming courts of first resort," he said.

A constitutional amendment to promote a more ‘harmonious’ relation between the legislature and the judiciary—a euphemism for clearer territorial boundaries—is a concept that various shades of politicians have been toying with for the last two years. Indeed, a confidential report prepared by the Committee of Presiding Officers in January 1994 recommended just that. The rationale stated was unambiguous: to "safeguard the independence and dignity of the presiding officers and their respective Houses".

The Committee, while stating its case, invoked both the letter and spirit of clauses in the statute—and the perceived gaps in the law—that impinge on these issues. Its report elaborated the legislature’s concerns vis-a-vis the judiciary with these points:

  •  Without the inherent right to protect its privileges and immunities and the power to punish breaches and contempt, all other privileges of the House have little meaning.

  •  The Constitution has allotted specific duties and responsibilities to the legislature and the judiciary and their roles are intended to be complementary to each other. Therefore, both should function with mutual trust and respect, each recognising the independence, dignity and jurisdiction of the other.

  •  Judicial interference in the procedure of the legislatures has added a ‘conflict dimension’ to their mutual relationship.

  •  A parliamentary democracy presupposes the legislature’s supremacy in its own sphere. Legislatures must have complete freedom in matters of procedure and conduct of business.

  •  It is the legislature that makes the laws, and it is in interpreting these that the judiciary’s area of functioning lies.

  • Since Articles 121 and 211 of the Constitution impose restrictions on discussion in Parliament and legislatures about judges discharging their duties, a reciprocal provision with respect to presiding officers should be made. This, naturally, is where the demand for a constitutional amendment comes in.

    The judicial activism bogey is not entirely new. But the immediate provocation for all this ire came with the Patna High Court’s directive to the CBI, enjoining the officers investigating the fodder scam case to report to it directly. The fact that this would have the effect of bypassing the CBI director has set the alarm bells ringing in all parties. The court, in the contentious order, put it on record that it had reasons to believe that the CBI chief was doctoring reports being submitted to it.

    Not everyone is happy with the court ruling. Points out Kerala PCC president and Rajya Sabha member, Vayalar Ravi: "The court has every right to pull up the CBI director. It can pass strictures against him and order the concerned secretary to inquire into the doctoring of facts. But it cannot decide on which officer should conduct the investigation or direct a junior official to bypass his senior." 

    Supreme Court advocates R.K. Anand and I.U. Khan feel the directive would have a demoralising effect on the CBI, especially since its manual states clearly that all case-sheets must be vetted by the CBI director. In appropriating the CBI as its own investigating mechanism, they argue, the courts have become a one-window system for dispensing justice. Asks Janata Dal MP Sharad Yadav: "When junior officers do not answer to their seniors, how can the rule of law be maintained?" Sushma Swaraj of the BJP believes judicial activism has come into play because of the failure of the executive. But she too agrees that it is a dangerous trend in itself: "Tomorrow a joint secretary will not answer to a secretary or a soldier to his commander." 

    Of course, not all politicians agree that the judiciary is acting beyond its jurisdiction. Janata Dal ideologue Surendra Mohan, for instance, points to the numerous cases where the CBI’s functioning has been compromised by the executive, as in the investigations into Bofors and St Kitts. Swaraj, too, contends that the court had little choice but to free the CBI of executive control. Even Congress spokesman V.N. Gadgil is of the view that the Patna High Court was well within its rights in issuing fiats to the investigating officials to report directly to it. 

    Is the recent trend of the judiciary closely monitoring CBI investigations desirable? A section of Supreme Court lawyers concede that the court has the power and the moral duty to correct the CBI. However, they also point out that in the process the agency is being put under so much pressure that it often makes tall claims to please the judges. Says lawyer Harish Salve: "I have seen the CBI chargesheets in the hawala case. Some of them, including the one against L.K. Advani, are quite hollow." 

    So, what is it that has caused the judiciary to take on an activist role? There is near-unanimity that it is the direct consequence of a dormant and ineffective executive. Sangma himself conceded at the symposium that the executive has been shunning accountability, that issues of public importance are not being handled effectively. It’s the cumulative effect of years of such non-performance that has forced the judiciary to step in, he said. In a similar vein, BJP MP Jaswant Singh also speaks of "executive venality and legislative acquiescence". Adds former Karnataka chief minister Ramakrishna Hegde: "If the executive had not usurped the powers of the legislature and browbeaten the judiciary in the past, the present situation would not have arisen." 

    In fact, politicians of all hues—including those who were part of the government in the last five years—unanimously subscribe to the view that the judiciary stepped in to compensate for a weak, listless executive—burdened with the sab chalta hai attitude of its administrative machinery. Veteran CPI(M) leader H.K.S. Surjeet points to "a vacuum created by an executive that has stopped functioning". The judiciary, he says, has "stepped in largely on behalf of the people and is seen to be doing so in popular perception. The politicians who complain have had the opportunity but failed the people. I have no sympathy for them." Hegde also feels that the "unhealthy camaraderie between legislators and civil servants" has led to the latter abdicating their responsibility to discharge their duties without fear or favour.

    Some politicians, like Hegde and Tamil Nadu Chief Minister M. Karunanidhi, are strongly in favour of the role the judiciary has been playing. They, in fact, hold that an ‘inactivist’ judiciary at this juncture would actually be seen to be failing in its duties. Karunanidhi doesn’t see any attempt by the judiciary to "override the legislature or Parliament".

    There’s no denying the positive impact of judicial activism. From battling the seasonal dengue fever attacks in Delhi to saving the Taj Mahal, it’s the judiciary that has provided succour. And people at large seem to appreciate this. Notes Mohan: "People are dying because the executive is not doing its job. If you deny them access to the last forum of appeal, you might as well line them up and shoot them." According to him, when Parliament is ineffective, the only recourse is the judiciary. As for the demand for a check on the courts, he dismisses it, saying the corrupt cannot be allowed to dictate how corruption should be handled. "If anyone is denigrating politics, it’s not the courts but the politicians themselves." 

    To be sure, there are shades of differences in the way different parties—who are affected differently in the recent corruption cases—are responding to the issue. But largely, the outcry from politicians seems to have been prompted less by current political exigencies than by a growing sense of erosion of their domain. For instance, the BJP only stands to gain by the discomfiture caused to Narasimha Rao and Janata Dal leaders by recent corruption cases. But that party is equally concerned about judicial interference in executive matters. Both Swaraj and Jaswant Singh, while acknowledging the positive impact of judicial activism, advise restraint. "The courts should use their power sparingly, in extreme circumstance," says Swaraj. Adds Singh: "The dysfunctioning of one organ of the republic cannot be corrected by the intrusion of another. The cure for public venality does not lie in the courts of law, but in the people’s representatives setting an example, providing leadership and regaining iqbal—the moral authority to rule."

    In past confrontations with the judiciary, the legislature has used the brahmastra of constitutional amendment to get its own way. Former law minister Hansraj Bharadwaj (who attended the private meeting with Sangma, along with the BJP’s K.R. Malkani, P. Upendra and Santosh Mohan Dev of the Congress and CPI-M’s Hanan Mollah) points out that the first constitutional amendment (1951) was prompted by the Patna High Court’s refusal to endorse land reform legislation in Bihar. Again, the fourth amendment in 1954 enabled land reforms in Uttar Pradesh despite opposition from the judiciary.

    In 1970, when Indira Gandhi abolished the privy purses, the Supreme Court deemed the move incorrect on the ground that former kings were protected by a constitutional guarantee. Parliament promptly amended the Constitution, compelling the Supreme Court to uphold the bill. When the apex court struck down bank nationalisation, Indira Gandhi forced another constitutional amendment through. "She restored the sovereignty of the legislature with that," declares Bharadwaj.

    Indian polity has changed radically since then. In the current phase of judicial assertiveness, the legislature is clearly at a disadvantage. The current brand of what Jaswant Singh calls "combative politics" seems to preclude consensus even within political parties, leave alone Parliament. Constitutional amendments, which require a two-thirds majority, are a tough proposition when "the legislature itself is combative".

    However, more and more MPs are veering around to the view that the judiciary has become a shade too activist. In a letter to the Speaker seeking a special session on judicial activism, Vayalar Ravi and Priya Ranjan Das Munshi said the judiciary-legislature relationship had deteriorated because of "an impression of superiority of the judiciary". This was underlined when the Manipur speaker was arrested, handcuffed and produced before the apex court. "It is a matter of grave concern of every MP and the legislative assembly that their rights and privileges are being eroded," they added.

    Former Karnataka chief minister Veerappa Moily cautions against a confrontation between the executive and the legislature but adds that the judiciary should not paint all politicians with the brush of corruption. West Bengal Speaker Hashim Abdul Halim says the judiciary should respect the sovereignty of Parliament: "It’s not expected that the judiciary should criticise the people who make the law." Goa Speaker Tomazinho Cardozo is in favour of diluting Article 211 of the Constitution, which restricts the legislature from discussing the higher judiciary’s conduct. 

    "The Supreme Court should not pass judgement on Parliament," says Bharadwaj. "If politicians are defamed beyond a reasonable limit, no good people will join politics." Some of the blame is also being attached to the Congress. Many politicians feel the Congress has no moral right to question the courts—they point out that it was during Rao’s tenure that the executive left it to the courts to deliberate on every controversial issue that the executive should have decided. Observes MDMK spokesman K.S. Radhakrishnan: "The judiciary is probably the only institution doing its duty today. The Congress, which has failed to implement even its own constitution, has no reason to cry wolf."

    It was the increasing tendency of the executive to rely on the judiciary and refer to it all contentious matters—like Ayodhya—that gave a fillip to judicial activism. Says Swaraj: "The former prime minister was fond of saying the law would take its course. Now that it has and it has not bypassed him, the Congress is taking up the cry of judicial over activism." MPs of all denominations are calling for an all-party meeting to debate how the balance between the republic’s three organs can be restored. Revitalising the legislature is the only answer to judicial activism, they feel. "We shouldn’t run away from parliamentary probes. The JMM case should have been handled by Parliament itself, as such cases have been in the past. At worst, Parliament would have asked the guilty to resign. Now, they may well go to jail," says Swaraj. Mohan agrees that when joint parliamentary committees become toothless, the courts are the last resort.

    According to Das Munshi, the need for a debate has acquired urgency with the Lok Pal Bill due to come up in the next session of Parliament. While no MP is willing to say the Bill is undesirable, they express doubts about its efficacy. "The assumption is that the creation of a Lok Pal will be another step towards providing checks and balances. As a nation, we have a tendency to over-legislate. Consider the Lok Ayukts. Have they made public life more transparent, or cleaner or established more accountability?" asks Jaswant Singh.

    Others, like Mohan, are unsure whether the Bill will be passed at all. It has been presented four times in Parliament to no avail. When it was introduced in 1988, a select committee of Parliament recommended that the prime minister should be brought under its purview and the bill was promptly withdrawn. "The Bill alone can’t bring about transparency and weed out corruption," says a senior minister in the Deve Gowda Cabinet.

    Several MPs, including Sangma, have expressed the view that there is a distinct trend towards judicial populism. Judges are pandering to the public viewpoint, they feel. Salve charges the media with playing a sensationalist role. Thanks to the media, he says, public attitudes today are those of the mob during the French Revolution: "Every time a new head falls, a cheer goes up." Halim too charges the press with "provoking" the judiciary.

    Many MPs now regret that Parliament did not take action against former Supreme Court judge V. Ramaswami when the question of his impeach. ment for alleged embezzlement came up before the House. It was the Congress which bailed out the judge by abstaining from the voting. The required majority to take action against the judge could not be cobbled up. Notes Jaswant Singh: "The legislature should have risen to the occasion. After all, the judge had been found aberrant by his own peers. But the Congress forced a division and exonerated him."

    The refrain seems to be: Parliament must clean up its act and assert itself. But this is easier said than done. First, the confrontationist attitude various political parties have vis-a-vis each other makes it difficult for MPs to arrive at a common programme. Moreover, the current spate of judicial activism seems to have the full backing of the general public. Few parties want to be seen openly attacking the judiciary amidst a general perception that the judges are only doing what is needed: stem the rot in the system. But optimists believe that the ‘common danger’ might just bring all politicians together. The agenda, in that event, would be to bring about systemic changes, involving an amendment. Not merely to ensure the separation of powers that the Constitution envisaged, but also to clean up the system so that the judges don’t feel compelled to play monitor. 

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